Watson v. State

760 S.W.2d 756, 1988 Tex. App. LEXIS 2711, 1988 WL 115313
Court of Appeals of Texas·Decided November 2, 1988·No. 07-87-0269-CR·Published·Cited by 13 cases

Opinion

PIRTLE, Justice.

Appellant Reagan Duane Watson appeals from his conviction for aggravated sexual assault and the jury-assessed punishment of 99 years confinement in the Texas Department of Corrections and a fine of $10,-000. In two points of error, appellant argues the trial court erred because (1) it failed to quash the appellant’s indictment alleging that the appellant was reindicted due to prosecutorial vindictiveness; and (2) it permitted improper jury arguments during the punishment phase of the trial. We affirm.

On December 4, 1986, the complainant and her minor child were sleeping in their Amarillo home when appellant unlawfully entered the house, put his hand over the complainant’s mouth, and told her to cooperate or her son would be killed. The appellant then sexually assaulted her. The appellant was connected to the offense by fingerprints, shoe prints, and the matching of a broken button found in complainant’s house with a broken button on a shirt found in the appellant’s closet.

The appellant was originally indicted by a Potter County grand jury on a charge of burglary of a habitation with intent to commit sexual assault, enhanced by a prior felony conviction. On June 26, 1987, the appellant pled guilty to the indictment under a plea bargain agreement in exchange for a recommended sentence of 60 years and the dismissal of any other charges against him arising out of the same criminal episode.

After the appellant was transferred to the penitentiary, he wrote a letter to the trial judge, file marked July 20, 1987, complaining of the inadequacy of his representation and questioning the voluntariness of his guilty plea. The trial court requested his attorney to prepare a motion for new trial, and subsequently granted the appellant’s motion and ordered a new trial.

The appellant was subsequently indicted on a charge of aggravated sexual assault, enhanced by the same prior felony conviction used to enhance the earlier burglary indictment. Both the original burglary indictment and the subsequent aggravated sexual assault indictment arose out of the same criminal episode.

PROSECUTORIAL VINDICTIVENESS

By his first point of error, the appellant asserts that the prosecutor violated his rights under the Due Process Clause of the Fourteenth Amendment by reindicting appellant for a more serious offense after he successfully challenged his conviction on the original offense, thus subjecting him to a significantly increased potential period of incarceration. * We disagree.

The appellant filed a pretrial motion seeking to quash the indictment, alleging that he was being vindictively prosecuted solely because he had exercised his right to a new trial. At a hearing on his pretrial *758 motion the appellant testified that he would not have requested a new trial had he known that he would have been indicted for aggravated sexual assault. On cross-examination the appellant admitted, however, that when he pled guilty to the burglary offense, he had other charges pending against him, including the charge of aggravated sexual assault. The appellant further conceded that under the plea bargain agreement he was to plead guilty to the burglary indictment in exchange for a recommended 50-year sentence and the dismissal of the other pending charges. The appellant went on to acknowledge that he knew that when the new trial was granted, the plea bargain was “over with” and that he would be exposed to a trial on the aggravated sexual assault charge. The record of the pretrial hearing reflects the following question by the prosecutor and response of the appellant:

[The prosecutor]: So that, you knew, [the new trial] would have exposed you, at least, to a trial on that pending aggravated sexual assault charge, wouldn’t it?
[The appellant]: Yes, sir.

The trial court overruled the appellant’s pretrial motion, the case proceeded to trial, and the appellant was found guilty of aggravated sexual assault.

Appellant’s claims of prosecutorial vindictiveness are derived substantially from Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and its predecessor, North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In Pearce the Supreme Court held that the Due Process Clause of the Fourteenth Amendment “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he received after a new trial.” 395 U.S. at 725, 89 S.Ct. at 2080. Pearce involved an allegation of judicial vindictiveness. In Blackledge this same principle was later applied to prohibit a prosecutor from “upping the ante” by reindicting a defendant on a more serious charge after the defendant had invoked his right to an appellate remedy. The principle, as applicable to prosecutorial vindictiveness, was stated as follows:

A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.

Blackledge v. Perry, 417 U.S. at 28, 94 S.Ct. at 2102-2103. Four years later, the Supreme Court declined to apply the principles of Pearce and Blackledge to the pretrial plea bargain-negotiating process in Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). In that case the Supreme Court held that the Due Process Clause of the Fourteenth Amendment did not prohibit a prosecutor from carrying out a threat, made during plea negotiations, that additional charges arising out of the same criminal episode would be brought against the defendant if he refused to plead guilty to the offense with which he was originally charged. The court held that the element of prosecutorial vindictiveness was not present where the defendant was free to accept or reject the prosecutor’s offer. The Court went on to say:

For just as a prosecutor may forego legitimate charges already brought in an effort to save the time and expense of trial, a prosecutor may file additional charges if an initial expectation that a defendant would plead guilty to lesser charges proves unfounded.

457 U.S. at 381, 102 S.Ct. at 2492-2493. The Court concluded that the rationale of Pearce did not apply where the accused was openly presented with and therefore aware of the price of rejecting a plea offer. See also, Ehl v. Estelle, 656 F.2d 166 (5th Cir.1981).

The Texas Court of Criminal Appeals addressed this problem in Palm v. State, 656 S.W.2d 429 (Tex.Crim.App.1981), wherein it stated:

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Watson v. State, 760 S.W.2d 756, 1988 Tex. App. LEXIS 2711, 1988 WL 115313 (Tex. Ct. App. 1988).

760 S.W.2d 756 (Watson v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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